O'SHAUGHNESSY v. United States

• Decision Date: 05 February 1927
• Docket Number: No. 4819.,4819.
• Citation: 17 F.2d 225
• Parties: O'SHAUGHNESSY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

17 F.2d 225 (1927)

O'SHAUGHNESSY et al. v. UNITED STATES.

No. 4819.

Circuit Court of Appeals, Fifth Circuit.

February 5, 1927.

J. H. Webb and Samuel M. Johnston, both of Mobile, Ala., for plaintiffs in error.

Nicholas E. Stallworth, U. S. Atty, of Mobile, Ala.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

The indictment in this case charged 71 persons with conspiring to sell intoxicating liquors in Mobile, Ala., in violation of the National Prohibition Act (Comp. St. § 10138¼ et seq.); the alleged conspiracy including the obtaining for those engaged in such selling immunity from arrest for so doing. Six of the accused pleaded guilty. The trial of 62 of them began April 28, 1924, and the case went to the jury on May 21, 1924, without counsel on either side making any argument to the jury. Eleven of the accused were convicted, including Patrick J. O'Shaughnessy, who was chief of police of Mobile during the time of the alleged conspiracy, and George L. Donoghue, who during that time was chief deputy of the sheriff of Mobile county. The case is before us on writs of error sued out by O'Shaughnessy and Donoghue.

Many assignments of error are made in behalf of each of them. We find it necessary to discuss only those assignments of error which are based on exceptions to parts of the court's charge to the jury. In that charge the presiding judge recited at length much of the testimony in support of the charge made, and stated his conclusions as to the guilt or innocence of the several accused. Exceptions were reserved to the following, among other, parts of that charge:

"Now, that brings us to another official; that is, Mr. O'Shaughnessy. You remember Mr. Howell testified he was employed as Mr. O'Shaughnessy's clerk in the police department; that, when the Crawford campaign was coming along, he was told by O'Shaughnessy to get after the liquor dealers and make them contribute to this fund, and he commenced raiding, and he told you as a result that he got contributions from the liquor people, which were turned over to Mr. O'Shaughnessy. You remember Pennington testifies to a raid on Bob Thomas. He was this same darkey I referred to before — a pool room. And then he goes on to tell you that after he had found the liquor, not in the pool room, but outside, that he was called to the telephone, and Mr. McEvoy spoke to him and told him not to take that liquor off, but let it alone, and he said he would, and he went on, and in a few minutes he was called again to the 'phone, and then the chief of police, Mr. O'Shaugnessy, told him to do whatever McEvoy said. Now, these conversations were denied by the other parties, but the other officer who was there with him does testify, as I recall it, that he was called to the 'phone; he never knew about what took place as to what was said, but he was called to the 'phone. Now, Lieutenant Adams testifies about these same transactions, and about instructions that the chief gave him about these liquor dealers, and a list which he had of men who were not to be raided. Chief O'Shaughnessy denies that. Then there was testimony by Mr. Pennington about a raid which he and Mears made on a street where there was an immoral house, and when they came in the chief of police got after them about it, and wanted to know if they were going to run that office. They said they saw the offense committed, and the chief got very angry. If you will remember there was another witness, the police officer, who testified about living right across the street, and the trouble his family was having, because the opposite neighbors was dealing in liquor and making it very objectionable, and the chief asked him if he knew that, and he told him it was under cover, and it eventually came to the time when he told this man to go somewhere else. Then I believe there was Officer Pennington, who spoke of one of these places down there where the chief told him he did not want him to bother, because that was where Sid Lyons and Espalla went to play cards and get their beer. Then Mr. Zuckerman testifies, you remember, that he paid on the Crawford campaign $100; that he paid that to Officer Ollie Hubbard. Ollie Hubbard, you remember, gentlemen, was the officer who testified, and later on Chief O'Shaughnessy testified was the man who drove him to the station down there when he left Mobile. As the chief said, he left to keep from being pestered by people asking him about the indictment, and that Ollie Hubbard drove him to the station. Now, I have already spoken to you, when I was speaking about the case against Mr. McEvoy, about the testimony as to Moody given by Tom Corso, and the same testimony is applicable here to the chief. Tom took the stand, and he said he was paying $25 a month to Moody, and that McEvoy came to him and told him to make a contribution to the campaign, and he agreed to do it, and McEvoy told him that, if he did, he would not have to pay any more to Moody. Schreiner says he and Medicus paid $750 to the Crawford campaign, but did not know to whom it was paid.

"Now, gentlemen, right here there is one piece of evidence, and its bearing needs to be considered. There is the testimony of a number of these witnesses that Chief O'Shaughnessy did give protection by raising this fund for the Crawford campaign from the bootleggers, liquor dealers, and in consideration of that he did give protection. Now, if you remember, Mr. Joe Rich was put on the stand, who testified he was chairman of the campaign committee, and he produced the list of this committee. He then testified that not $1 was ever paid to his committee, or to him as chairman, or spent by his committee as having been paid by O'Shaughnessy or anybody else. So, if a contribution — a collection — was taken up by Chief O'Shaughnessy, then, certainly, he never paid that for the campaign expenses. Now, did he collect it? If so, what did he do with it? There is the testimony, and there is the question. Howell says that the chief told him that, if it was not used in the campaign, it was to be split four ways, between Howell, O'Shaughnessy, Crawford, and Hanlan.

"Now, Howell, you will remember, was the chief's clerk. He was the young man who got in trouble by shooting his pistol off down here, and had to leave the city's employment, and he acted as chief of police in the absence of Chief O'Shaughnessy, and was associated with him intimately and personally, a trusted man, and letters of reputation were given to this man when he...